ChiefJustice James T. Worthen 

### Twelfth Court ofAppeals
Justices Sam Griffith Diane DeVasto Wednesday, November 02, 2005

Ms. Deborah J. Race Ireland, Carroll & Kelley, P.C. 6101 S. Broadway Suite 500 Tyler, TX 75703

Mr. G. Roland Love Winstead Sechrest & Minick PC 5400 Renaissance Tower 1201 Elm Street Dallas, TX 75270

Ms. Brenda K. Hicks Hicks & Hicks 513 North Church Street Palestine, TX 75801

RE: Case Number: Trial Court Case Number: Mr. Daniel F. Dean Dean, Coe & Associates, PC 603 East Lacy P.O. Box 1578 Palestine, TX 75802-1578
Mr. Stephen Evans P.O. Box 754 513 North Church Palestine, TX 75801

Tammie Bailey 2212 Hwy. 87 North Center, TX 75935

12-03-00374-CV 9216 Clerk Cathy S.Lusk

Chief StaffAttorney Margaret Hussey

Style: Billie Wiggins and Carl Hamilton

v. Bruce Barrett, Mitchell Bailey, Elmo J. King, Letha King, David King, Warren King, Elkhart State Bank, Kay Pennington and Neches Hills Property Owners Association Enclosed is a copy of the Memorandum Opinion issued this date in the above styled and numbered cause. Also enclosed is a copy ofthe court'sjudgment. Very truly yours,
CATHY S. LUSK, CLERK
By: 

# KdjuiiA. Mfl< Katrina McClenny, ChiefDeputy Clerk

CC: Hon. Deborah Oakes Evans Hon. John Ovard Ms. Janice Staples 1517West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193 ServingAnderson, Angelina, Cherokee, Gregg,Henderson, Houston,Nacogdoches,Rains,Rusk, Sabine,SanAugustine, Shelby, Smith,Trinity, Upshur, Van Zandt and Wood Counties www.12thcoa.courts.state.tx.us

### NO. 12-03-00374-CV



### IN THE COURT OF APPEALS



### TWELFTH COURT OF APPEALS DISTRICT 

## TYLER, TEXAS

BILLIE WIGGINS AND CARL HAMILTON, APPELLANTS §

BRUCE BARRETT, MITCHELL BAILEY, § ELMO J. KING, LETHA KING, DA VID KING, WARRENKING, ELKHARTSTATE BANK, KAYPENNINGTON, AND NECHES HILLS PROPERTY OWNERS ASSOCIA TION, APPELLEES § APPEAL FROM THE 87TH

JUDICIAL DISTRICT COURT OF

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION 

### This is an appeal ofa summaryjudgment rendered in a trespass to try title case. Appellants 

### Billie Wiggins and Carl Hamilton complain in two issues that the trial court erred in granting summary judgment for Bruce Barrett, Mitchell Bailey, Elmo J. King, Letha King, David King, Warren King, Elkhart State Bank, Kay Pennington, and Neches Hills Property Owners Association, Appellees. We reverse and remand.

Background 

### Appellants sued Appellees for trespass to try title and for a declaratoryjudgment that certain 

### deeds into Appellees are void and that Appellants are the owners of the 31.374 acre tract in dispute. Appellants also sought actual and exemplarydamages and attorney's fees. Various Appellees filed motions for traditional and no-evidence summary judgments, and Appellants filed a traditional

### motion for partial summaryjudgment. See Tex. R. Civ. P. 166a(a), (i). The trial court denied Appellants' motion for summaryjudgment and granted Appellees' motions. All Appellees were named as parties to the final summaryjudgment. 

### Appellants claim an undivided interest inthe subjecttractthrough their grandfather, Richard Crawford, whose fifty acre homeplace, Appellants assert, includedwithin itsfences allofthe31.374
acre tract incontroversy. Intheirpetition, they claimed title totheproperty (1) byrecord title, (2) by 

### adverse possession under the ten and twenty-five year statutes, and (3) under the doctrine ofprior possession. 

### Appellee Bruce Barrett filed ano-evidence summaryjudgmentmotion contending there was no evidence of anyof theelements ofproof required under thethree, five, ten, andtwenty-five year

statutes. 

### Appellees Elmo J. King, Letha King, andElkhart State Bankfiled ano-evidence summary 

### judgmentmotion maintaining that Appellants could produce noevidence ofrecord title. They also claimed in their no-evidence motion that Appellants had no evidence sufficient to describe the 

### property adversely possessed nor any probative evidence to establish any of the listed requisite elements of the ten or twenty-five year statues. Their no-evidence motion included a traditional 

### summaryjudgmentmotion seeking toestablish thatAppellants could notrecoverunderthedoctrine of prior possession because the movantsheld recordtitle to the property. I n supportoftheir traditional motion, the movants attached a series ofdeeds beginning with a 1972 conveyance from James Wren to Bascom Bentley. 

### Appellee Cynthia Bailey, Independent Executrix of theEstate ofMitchell Bailey, deceased, subsequentlyjoined both motions. 

### In theirresponse to themotions forsummaryjudgment,Appellants presented no evidence of record title, but offered affidavits to support their claims oflimitations and prior possession.

Standard of Review 

### Summary judgment decisions are reviewed by appellate courts de novo. Lavaca Bay Autoworld,L.L.C. v. MarshallPontiacBuickOldsmobile, 103 S.W.3d650,653 (Tex. App.-Corpus 

### Christi 2003, no pet.). "When both sides move for summaryjudgment and the trial court grants one

### motion but denies the other, the reviewing court should review both sides' summaryjudgment 

### evidence, determineall questionspresented,and renderthejudgment that the trial courtshould have 

### rendered." Id. (citingFMProps. Operating Co. v. City of Austin, 22S.W.3d 868,872 (Tex. 2000)). Traditional motions forsummaryjudgmentandno-evidence motionsforsummaryjudgmentinvoke different standards ofreview. Lavaca, 103 S.W.3d at 653. For traditional motions for summary 

### judgment, thekeyquestion is "whether the summaryjudgment proofestablishes as amatter of law that thereis no genuine issue offact as to one ormore of the essential elements of the

... causeof action." Id. (quoting Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970)). For noevidence motions for summaryjudgment, the legal sufficiencystandard applied to pretrial directed 

### verdicts isappropriate. "If thenonmovantproduces evidencetoraiseagenuine issueofmaterial fact, summaryjudgment is improper." Lavaca, 103 S.W.3d at 653. 

### None of the appellees filed a traditional motion for summaryjudgment seekingto negate as
a matter oflaw one or more elements ofAppellants' claim ofadverse possession under the ten or 

### twenty-five year statute of limitations. Therefore, ifAppellants produced evidence amounting to more than a scintilla on each ofthe requisite elements to recovery under either statute, the trial court erred in granting summaryjudgment. Applicable Law 

### "A person must bring suit not later than 10years after the day the cause of action accrues to recoverreal propertyheld in peaceableand adversepossessionby one who cultivates,uses, or enjoys 

### theproperty." Tex. Civ.Prac.&Rem. Code Ann. § 16.026(a) (Vernon 2002). Thetwenty-five year statute provides that "[a] person, regardless of whether the person is or has been under a legal disability, must bring suit not later than 25 years after the day the cause ofaction accrues to recover 

### realpropertyheld inpeaceable andadverse possessionby anotherwhocultivates, uses,orenjoys the property." Id. § 16.027. "Adverse possession" means an actual and visible appropriation of real property,commencedand continuedunder a claimofright that is inconsistentwith and hostile to the 

### claim of another person. Id. § 16.021(1). Peaceable possession is defined as possession "that is continuous and is not interrupted by an adverse suit to recover the property." Id. § 16.021(3). 

### Possession must not only be actual, but also visible, continuous, notorious, distinct, hostile (i.e., adverse), and of such a character as to indicate unmistakably an assertion of a claim of exclusiveownership in the occupant. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990).
Evidence The affidavit ofJames M. Crawford recited that he was born three miles from his Uncle Richard Crawford's homeplace in 1922. When he went to school, he walked or rode a horse across the Wren property near his uncle's home. James Crawford stated that from the time he was three or four years old until he joined the Soil Conservation Corps in 1939, Richard Crawford lived on his homeplace, farmed on his homeplace, and raised his family there. James Crawford returned to Palestine in 1946 from military service. After that time, his Uncle Richard Crawford continuously resided on his homeplace until his death. James Crawford stated that the affidavit ofJames Wren correctly described the Richard Crawford. From his earliest recollection, he knew that Richard Crawford lived on and farmed the homeplace growing cotton, corn, peas, and other vegetables. Richard Crawford, he stated, planted fruit trees there. He also stated that, after Richard Crawford's death, his descendants continued to live on the property. James Wren stated in his 1978 affidavit that Richard Crawford purchased a fifty acre tract adjoining the McCleod survey in 1917 and lived there until his death in 1949. He further stated that neither he nor his family had ever asserted a claim to the Richard Crawford tract. 

### PlaintiffBillie Wiggins recited in her affidavit that she was born in 1943 on the homeplace ofRichard Crawford, her great-grandfather, and that, except for six months, she had lived there all ofher life and still lived there. She said the fifty acre tract was fenced on all four sides and, since she had lived there for most ofher life, she was very familiar with its boundaries. She said Richard 

### Crawford and his heirs farmed and planted fruit and nut trees on the land in dispute and harvested the fruit from the trees continuously for more than twenty-five years and until this dispute arose in 1993. She recited that she has paid taxes on the fifty acres known as the Richard CrawfordPlace and 

### said that the tax statements sometimes called it a part ofthe Payne Survey and other times described 

### it as part ofthe Payne and McCleod Surveys. She further stated that the 31.374 acres in dispute are located within the Richard Crawford home place. 

### There is more than a scintillaofevidence that from 1917 until 1950 there was a fifty acre farm known as the Richard Crawford Place; that from the time ofJames Crawford's earliest recollection (no later than 1930) until Richard Crawford's death in 1949 or 1950, Richard Crawford lived

### continuously on the property, planted fruit and nut trees on it, and farmed it in cotton, corn, and vegetables; and that during that time the fifty acre tract was enclosed by a boundary fence. The affidavits of James Wren and James Crawford show that the fifty acre tract was known in the 

### neighborhood as the Richard Crawford Place and that Richard Crawford was regarded as its owner. The summaryj udgment proof also shows that since Richard Crawford's death, his heirs have 

### continued to occupy and farm the place and that Appellants are among his heirs. In her affidavit, Billie Wiggins states that, except for six months, she has lived on the farm all her life, that she is familiar with its boundaries, and that the disputed 31.374 acre tract described by metes and bounds lies entirely within the fifty acre tract adversely possessed by Richard Crawford and his heirs. There is, however, no metes and bounds description ofthe Richard Crawford fifty acre tract, 

### although the disputed 31.374 acre tract claimed to lie within it is described by metes and bounds. James Wren, in his 1978 affidavit, describes the tract as fifty acres lying adjacent to certain other tracts, a description defendants assail as too vague to permit a surveyor to accurately locate it on the ground.A plaintiffin a trespass to try title suit must describe the premises claimed "by metes and bounds, or with sufficient certainty to identify the same." Tex. R. Civ. P. 783(b). When a plaintiff sues for a specific tract, the burden is on the plaintiffto prove the location ofthe adversely possessed tract on the ground. Coleman v. Waddell, 151 Tex. 337, 340, 249 S.W.2d 912, 913 (Tex. 1952); Thompson v. Texas CommerceNat'lBank Ass'n, 586 S.W.2d 138, 139 (Tex. Civ. App.-Houston [lstDist] 1979, writ refdn.r.e.). In Coleman, the court addressed the converse of the description problem presented here; there, the adverse possession claimant failed to describe a smallertract inside a sufficiently described larger one. The Waddells claimed a described one hundred acre tract, their claim resting upon their enclosure and continuous use ofan approximately two acre garden plot for a period sufficient to satisfy the ten year statute. Their claim failed as to the area outside of the garden, because the evidence showed that during the limitation period the record owners, through their vendee Kirby Lumber Company, had cut and removed the commercial timber from the property outside ofthe garden. The court also rejected their claim to the enclosed two acre garden, because the Waddells failed to allege or prove an adequate legal description ofthe smaller tract. "For that reason the trial

### court could not renderjudgment in theirfavorfor it." Coleman, 249 S.W.2d at 913 (emphasis added).

### In Thompson, the plaintiff claimed adverse possession by enclosure of a specifically described two acre tract. The court rejected the plaintiffs claim because his proofdid not "establish the physical location ofeach side ofthe enclosure on the ground." Thus, the plaintiffdid not meet his burden ofestablishing by prima facie proofthe ground location ofthe property described in the petition." Thompson, 586 S.W.2d at 141. Appellees argue that to avoid no-evidence summary judgment, Appellants' summary judgment proofmust legally describe the 31.374 acres in dispute claimed to be adversely possessed
as well as the adversely possessed fifty acre tract that encompasses it, although a considerable part ofthe larger tract is not in dispute. Appellants contend that Rule 783 and the case law require that their pleading and proof include a specific legal description for onlythat part ofthe adverselypossessed tract that is in dispute. The rationale underlying the requirement that the petitionerin trespass to try title describe the premises claimed "by metes and bounds, or with sufficient certainty to identify the same" is that, absent such a description, the trial court cannot render a judgment that will effectively deliver possession ofthe premises in controversy. Coleman, 249 SW.2d at 913; see Tex. R. Civ. P. 783(b). This rationale does not support Appellees' argument. We conclude that to avoid no-evidence summaryjudgment, Appellants' proofneed only legallydescribe the 31.374 acres in controversy, but not the adversely possessed larger tract embracing it.

Conclusion We conclude that Appellants presented summaryjudgment proofamounting to more than a scintilla supporting each element oftheir adverse possession claim to the property in controversy. The trial court'sjudgment is reversed, and the cause is remanded for further proceedings. BILL BASS Justice Opinion delivered November 2, 2005. Panel consistedofWorthen, C.J.,Griffith, J., andBass, RetiredJustice, Twelfth Court of

Appeals, Tyler, sittingbyassignment. (PUBLISH)

6 •

### COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS 

### JUDGMENT

NOVEMBER 2, 2005

NO. 12-03-00374-CV

BILLIE WIGGINS AND CARL HAMILTON, Appellants V. BRUCE BARRETT, MITCHELL BAILEY, ELMO J. KING, LETHA KING, DAVID KING, WARREN KING, ELKHART STATE BANK, KAY PENNINGTON, AND NECHES HILLS PROPERTY OWNERS ASSOCIATION, Appellees Appeal from the 87th Judicial District Court ofAnderson County, Texas. (Tr.Ct.No. 9216)

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion ofthis court that there was error in the judgment as entered by the trial court and that the same should be reversed and the cause remanded to the court below for further proceedings. It is therefore ORDERED, ADJUDGED and DECREED that thejudgment of the court below be reversed and the cause remanded for further proceedings in accordance with the opinion ofthis court; and that all costs ofthis appeal be, and the same are, adjudged against the Appellees, BRUCE BARRETT, MITCHELL BAILEY, ELMO J. KING, LETHA KING, DAVID KING, WARREN KING, ELKHART STATE BANK, KAY PENNINGTON, AND NECHES HILLS PROPERTY OWNERS ASSOCIATION, for which let execution issue; and that this decision be certified to the court below for observance. Bill Bass, Justice. Panel consistedofWorthen, C.J.,Griffith, J., andBass, RetiredJustice, Twelfth Court of

Appeals Tyler,sitting by assignment.